Texas PJC Malpractice 2022

PJC 71.12

P RODUCTS L IABILITY —T HEORIES OF R ECOVERY

QUESTION ______ Did the representation that the power brakes of the Panther auto mobile would function normally with the engine not running become part of the basis of the bargain between Panther Manufacturing Company and Paul Payne for the sale of the automobile ? Requirements to create express warranty. Creation of an express warranty requires that a seller make an affirmation of fact or promise that relates to the goods and becomes a part of the basis of the bargain. Tex. UCC § 2.313(a)(1). The “basis of the bargain” question may be a fact issue constituting an essential element of the express warranty. Indust-Ri-Chem Laboratory v. Par-Pak Co. , 602 S.W.2d 282, 289 (Tex. App.—Dallas 1980, no writ); General Supply & Equipment Co. v. Phillips , 490 S.W.2d 913, 917 (Tex. App.—Tyler 1972, writ ref’d n.r.e.). An affirmation merely of the value of the goods or a statement purporting to be merely the seller’s opinion or commendation of the goods does not create an express warranty. Tex. UCC § 2.313(b). Caveat. If the express warranty arises from a sale by sample under Tex. UCC § 2.313(a)(3) and the seller has introduced proof of the buyer’s lack of reliance on the sample, the seller may be entitled to an instruction that the warranty was not a part of the basis of the bargain if the buyer did not rely on it. See Indust-Ri-Chem Laboratory , 602 S.W.2d at 289 (lack of reliance may inferentially rebut “basis of bargain” element of plaintiff’s recovery). Proximate cause standard. Unlike a cause of action based on strict tort liability, an action based on breach of express warranty under the Texas UCC requires a finding of “proximate” rather than “producing” cause. Hyundai Motor Co. v. Rodriguez , 995 S.W.2d 661, 667 (Tex. 1999). For a definition of “proximate cause,” see PJC 70.2.

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